the coming r6le ofthe medical profession in …...and prosper under free trade and protection, under...

The Coming R6le of the MedicalProfession in the Scientific

Treatment of Crimeand Criminals,

AUSTIN FLINT, M.D., LL.D.,Professor ofPhysiology in the Bellevue Hospital Medical

College ; Visiting Physician to Bellevue Hospital ;

Visiting Physician to the Insane Pavilion,Bellevue Hospital; Consulting Physician

to the Insane Asylums of NewYork City, etc.

HEPBINTHD PBOM THB

Jfeto York JHrWcal Sounwlfor October 19, 1895.

Copyright, 1895. by T). Appleton and Company.

Reprinted from the New York Medical Journalfor October 19, 1895.

THE COMING ROLE OFTHE MEDICAL PROFESSION

IN THE SCIENTIFIC TREATMENT OFCRIME AND CRIMINALS*

AUSTIN FLINT, M. D., LL. D.,PROFESSOR OF PHYSIOLOGY IN THE BELLEYUB HOSPITAL MEDICAL COLLEGE ;

VISITING PHYSICIAN TO BELLEVUE HOSPITAL ;

VISITING PHYSICIAN TO THE INSANE PAVILION, BELLEVUE HOSPITAL ICONSULTING PHYSICIAN TO THE INSANE ASYLUMS OF NEW YORK CITY, ETC.

Dr. Cesare Lombroso, in his work on The Applica-tions of Criminal Anthropology , quotes Rondeau as saying,in an essay on the death penalty :

“ Even assassins are patients, as well as all other crimi-nals. They should be punished because they disturb theregular course of social life, because they are obstacles tothe development of the species.

“Conceding that every crime is the natural outcomeand a logical consequence of some disease, its penalty shouldbe nothing else than a medical treatment.”

The idea which underlies the views of Rondeau is thatmoral liberty has no existence, and that a moral evil is theresult of physical fault. “In his system of repression allprisons would be transformed into hospitals; no attemptwould be made to improve the organization of convicts.

* The President’s annual address before the New York State Medi-cal Association, October 16, 1895.

2 THE SCIENTIFIC TREATMENT OF

The thief and the vagabond would be treated by makingthem taste the joys of work, and in secluding for life thoseinaccessible to all treatment.”

Society, I venture to say, is hardly prepared to acceptthe logical consequences of these views; but it must beadmitted that the treatment of crime and criminals, underexisting laws and their melhods of execution, is a failure,and a failure so serious in its results that it is difficult toimagine what will occur before a revolution takes placeand scientific criminology and penology become establishedas part of the social fabric.

It has been stated on competent authority that crimein Great Britain is responsible for an annual public expend-iture of ten millions of pounds sterling. “ According toa recent report to the Ohio Board of State Charities, thecitizens of the United States spend an annual sum of fifty-nine million dollars on judiciary, police, prisons and reform-atories.” The president of the National Prison Congressof the United States says :

“Other questions which agitate the public and divideparties are doubtless important; but the country can liveand prosper under free trade and protection, under bi-metallism or monometallism, under Democracy or Repub-licanism, but it can not survive a demoralized peoplewith crime in the ascendant. That crime is on the in-crease out of proportion to the population is indicatedin many ways, but for the country as a whole the UnitedStates census is the most reliable guide. Let us look at itby decades:

Prisoners. Ratio to population.

1850 6,73719,08632,90158,60982,329

1 in 3,4421 in 1,6471 in 1,1711 in 8551 in 757 ”

I86018*7018801890

CRIME AND CRIMINALS.

In Great Britain, Germany, France, Italy and othercivilized countries, the penal systems do not differ very ma-terially from ours; and we may assume that in these coun-

tries crime is not more successfully treated. What wonderis it, then, that jurists who have studied this great ques-tion, like von Liszt, of Germany, “admit that our existingpenal systems are powerless against crime” !

The chief object of a penal system is the protection ofsociety. The facts that I have just cited show that theprotection of society against crime and criminals is becom-ing more and more alarmingly inefficient.

The statements and statistics just given have not beenexhumed from obscure sources. They are taken from Mor-rison’s introduction to The Female Offender, by Lombrosoand Ferrero, recently republished in New York and exten-sively circulated. Without considering the merits of thisbook in the form of its mutilated and imperfect translation,in which it seems hardly worthy of the distinguished repu-tation of Lombroso, the statistics alone, given in the intro-duction, should awaken the public to the necessity of aradical reform in penal methods and the danger of delay.

Sentimentality in questions of criminology and penol-ogy should be put aside. It has no more place in criminallaw and penal administration than in medicine and surgery.Crime is a disease of our social organization. It is true thatit is ineradicable, but it may be restricted within much nar-rower limits than at present exist. Crime calls for intelli-gent and scientific treatment. While crime can not be-abolished, all criminals are ■ not hopelessly affected withcrime. Individuals may be protected against crime as Jennerhas protected individuals against small-pox. Crime maybe a constitutional disease, as in the born criminal, or itmay be due, in individual cases, to surroundings, teachingor example—a sort of contagion. It has been abundantly

THE SCIENTIFIC TREATMENT OF4

shown that criminals may be divided into two great classes,the curable and the incurable; but the disease which wecall crime has nearly as many phases and varieties as arepresented by the nosological catalogue. Society needs theaid of competent men to undertake the task of separatingthe curable from the incurable, to restore the former to use-fulness and to protect our social organization against thelatter. Jurists, so-called lawgivers and those who executethe laws have failed. In my opinion, the only hope is inthe medical profession. This is the explanation I have togive of bringing the subject of crime before the Associa-tion. I have lately become fully sensible of the immense■extent and importance of the subject in its relations to theprofession, and, more than all, of my deficiencies in studyand experience in the questions involved; but no problemcan come before us more worthy of thorough investigationand careful consideration. I venture to recommend andhope that in a future meeting or meetings the Associationmay make this matter the subject of formal discussion andattempt to devise something to meet in a measure the ex-

isting and pressing necessity for reform.It is to be feared that the medical profession can have

little direct influence in the making or repeal of laws. Thepast does not show any encouraging success in this direction.The protection of the community against so dangerous andevident an evil as the unrestricted sale of patent medicinesof unknown composition, many containing powerful anddeleterious drugs, has never been accomplished. The pro-fession has found itself powerless against the immensepecuniary interests involved in the sale of secret remedies,and has not been able even to compel the disclosure of thecomposition of these preparations, so that the public mightknow what it is buying. How little, then, can we hope todo in the way of enacting intelligent penal laws or of re-


pealing bad laws that have been handed down from an-

tiquity ! Our chief hope at present is to-induce judges,lawyers and lawmakers to study law in the light of modernscientific knowledge.

The existing system of criminal law is based upon theancient idea of vengeance and retaliation in the form ofwhat is known as punishment. Crimes that are not crim-inal and offenses that do not offend are created every yearby legislative bodies, as well as laws which restrict theliberty of certain clashes, giving special privileges to others.Police organizations, whose duty it is to preserve rights,order, cleanliness, health, etc., and who are “ for the en-

forcement of the laws and the prevention of crime,” ofteninduce, by fraud and deceit, men to commit so-calledcrimes so that they may be punished therefor. Doesnot this tend to increase the number of enemies of society,who are already so numerous and threatening ? Are thereal offenses against the good order and happiness of thepeople so easily repressed that we can afford to create newand artificial crimes by statute ?

In its application to the treatment of crime and crimi-nals, the idea of the word law, in the minds of jurists andlegislators, needs revision. In its strict and scientific sense,the word law means something that is laid, fixed or set.A law is something that exists, has existed from the be-ginning, and the mind of man can not conceive that it willever cease to exist. Man can neither make, destroy nor

modify a law any more than he can create or annihilate anatom of matter. Laws,, when known, have been discoveredby man, not created. The laws of gravitation, of the cor-

relation and conservation of forces, of certain diseases, andthe most terrible and inexorable of all, the law of heredityand atavism, have been discovered by illustrious searchersafter truth. Man may modify the working of certain

THE SCIENTIFIC THE ATM ENT OF

natural laws, but tbe laws themselves remain fixed andimmutable. The universe, animate and inanimate, includ-ing man, exists and progresses in accordance with laws,known and unknown. i\Jan is subject to psychical as wellas physical laws, and no human act is without a cause, im-mediate or remote. In a so-called legal sense and in itsrelations to social organization, law may be termed formu-lated equity and applied justice; hut, in the words ofBlackstone, “ No human laws are of any validity if con-trary to the law of Nature, and such of them as are validderive all their force and all their authority, mediately orimmediately, from this original.”

Man is a gregarious animal. An outcome of the devel-opment of intelligence and knowledge is social organiza-tion. This is in accordance with a law of Nature, and itinvolves the necessity of ordinances and regulations forthe protection and preservation of communities. Whenthese ordinances and regulations are inequitable and un-just, there is immediate dissatisfaction and rebellion sooneror later. When the natural laws of what may be calledman’s physical organization have been violated, either inthe individual or in his ancestry, the result is disease. Aman mayr suffer for the faults of his own organism or frominfection or from Contagion. It is the province of thephysician to endeavor to cure the disease of an individualor care for him during its progress, so that he may be re-stored to health, and to protect individuals and communi-ties against infection and contagion, thus preventing dis-ease. Physicians have learned how to cure certain diseases ;

by the applications of sanitary science and quarantine theyprotect communities against certain diseases; recent dis-coveries have enabled them to secure immunity from cer-tain diseases. In the future, carrying out recent researchesin psychological medicine, physicians will be largely in-

CRIME AND CRIMINALS. 7

strumental in the treatment of moral disease. It is to thephysician that society will look for the differential diag-nosis between the curable and the incurable criminal.Scientific progress will lead us finally to abandon the an-

cient idea of punishment of crime, and to substitute forit, treatment and correction. The only punishments will hethose necessary for the enforcement of discipline in pris-ons and elsewhere. The treatment of criminals will re-

solve itself into measures to reform the curable and to pro-tect society against the incurable.

A necessary preliminary to the intelligent treatment ofany disease is diagnosis; and this, which is one of thefundamental principles of the science of medicine, is logi-cally applicable to moral as well as to physical or mentaldisease. It is universally recognized that the insane arenot responsible for their acts to the extent of deservingpunishment. The organization of society demands thatthere be protection against the harmful acts of the insane,and the dictates of humanity call for the protection ofthe insane against himself. It may fairly be assumedthat no mental disturbance taking the form of insanityis without a physical cause, however obscure this cause

may be. Is it possible that every moral delinquencyhas a physical cause? It is certain that nearly everyconfirmed and incurable criminal has a special leaningtoward a certain class of crimes. Is there a physical viceor defect which leads to the commission of these crimes,when conditions are favorable to the full development ofthis vice and to its expression in criminal acts ? These arequestions that are occupying the minds of criminologistsof the present day.

It is often said that the border line between insanityand crime is very narrow and indefinite. The plea of in-sanity, which is so often presented in extenuation of cer-


tain crimes, the irresistible impulse which some insanepersons have to commit certain crimes—such as homicide,suicide, stealing, arson, etc.—would seem to show that in-sanity, in some of its phases, readily fades into criminality,or that criminality may be the first manifestation of insan-ity. Nothing illustrates this idea more strongly than thedistinctions that have been drawn between criminality andso-called moral insanity.

To my mind, it should not often be difficult to distin-guish between criminality and insanity, provided the datafrom which to draw a conclusion be full and sufficient.There are the criminal insane and the insane criminal;the one, an insane person who commits crime under an

insane impulse; the other, simply a criminal who hasbecome insane. It might be difficult to fix the responsi-bility of the insane criminal if it were impossible to deter-mine the time when he became insane; but there shouldbe little difficulty in making a diagnosis of the criminalinsane. Other difficulties may also present themselves:An outburst of insanity, -made evident by a palpably in-sane act, under the influence of what seems to be a suddenimpulse or a recent delusion, has probably been precededby a delusion or delusions carefully concealed. A crimi-nal act, without insanity, may be discovered, the criminalhaving, during a long period of years, sedulously main-tained the appearance of scrupulous honesty, often assum-ing the cloak of religion. In some cases of this kind, ithas been maintained that the person is morally insane andis irresponsible. It has always been found very difficult toshow that a person who commits a crime against property,with intelligent efforts at concealment, hoping and endeav-oring to reap.the advantages of his crime or attempting toescape its consequences by flight, is irresponsible on anytheory. A kleptomaniac steals simply because there is an


impulse to steal winch he can not resist. lie does notprofit by the crime and has no logical reason for stealing.The criminal, however, always expects and attempts to en-

joy a personal advantage as the result of his crime, or hehas a reason which to his criminal mind is logical. Theexistence of strong temptation, great need or heavy finan-cial burdens, sudden passion which has a logical cause,revenge or hatred engendered by actual injuries or wrongs,afford satisfactory explanations of many crimes and enableus to determine the question of responsibility. I can

hardly bring myself to a belief in the existence of what iscalled moral insanity, excepting the moral defects whichare so often observed in dementia and senility, when cer-tain passions remain and the normal power of seif controlis impaired.

To Garofalo is due the credit of indicating differencesbetween the criminal and the insane, which are clearly ap-preciable wdth very few exceptions. In the insane, theaccomplishment itself of the criminal act is the end andobject, and is, in itself, a source of pleasure and satisfac-tion. In the criminal, the act is done as a means of ob-taining a material advantage, and the act itself may be re-pugnant. ft is the abnormal nature of the pleasure andthe fact that no other satisfaction is sought for, whichcharacterize the insane and distinguish him from thecriminal.

The classification of criminals is not difficult. Dr. D.Hack Tuke adopts the classification of Feni, with slightmodifications:

The criminal by passion, as a rule, has no criminalcharacteristics. lie is simply lacking in self-control andalmost invariably experiences remorse. Actually, a criminalfrom passion is not a criminal and is not a permanentenemy of society. It is necessary, however, to our social


system that he should take the consequences of his crimi-nal acts. He does not commit crimes against property.

The occasional criminal, or the criminal by occasion—-the serai-criminal of Lombroso—may properly be regardedas belonging to the criminal class. lie may or may nothave an opportunity or undergo temptation to commitcrime ; but under temptation and with opportunity he maycommit crime from mere weakness of character. Still,there is no occasional criminal who is without criminaltendencies in a greater or less degree. ,

Havelock Ellis’s distinction between the professionalcriminal and the instinctive, or the born criminal of Lom-broso, seems to me to be artificial. The born criminalalmost always presents physical signs of degeneration, andhis history often reveals heredity or atavism, his moralcriminal characteristics usually being intensified by sur-roundings. It is thought by some alienists and criminolo-gists that there is often little difference between the horncriminal and the victim of so-called moral insanity ; but itmust be admitted that a horn criminal is seldom regardedas insane unless he belongs to the higher classes of so-ciety.

The professional criminal may he a horn criminal, withphysical characteristics, or he may present no physical ab-normalities. The high-class professional is always a manof considerable intellectual ability, usually free from smallvices and a hard worker. It is pretty generally admittedthat a professional criminal past the age of thirty can nothe rescued from criminal life. The professional criminalis, of course, an habitual criminal; but other habitualcriminals there are of less ability, whose methods of exer-cising their vocation do not entitle them to rank with pro-fessionals.

We have little or nothing to do, in a scientific way,


with the criminal hy passion. Sad experience and remorse

may teach him a lesson and lead him to exercise self-con-trol. He must accept the consequences of his criminalacts; hut it is our duty, especially toward the young, toprovide that he be contaminated as little as possible bysurroundings while under control. So it should be withthose who offend simply against good order or who areguilty of what may be termed artificial crimes. It is not acrime to bake or sell bread at prohibited hours or to vio-late certain ordinances necessary to public decorum orcleanliness. Many men and more women can never bemade to feel that it is a crime to evade duties on purchasesfor their own use, yet the laws in this regard must be en-forced. So long as legislators continue to enact new so-called criminal laws every year, and officials are compelledto select certain of them to enforce—as it is physically im-possible to enforce them all—criminal statistics will never

represent the actual detected criminality. Criminality canbe studied in a statistical way only from the reports ofcourts and prisons; and it would contribute much to theaccuracy of our knowledge if we could eliminate all exceptoffenses against natural laws and those which are essentialto the integrity of our social system.

In the scientific study of crime, the physician has to domainly with the occasional criminal, the habitual criminal,and the born criminal ; and in this study, the first thing isto separate these from the offender who is not a criminaland the occasional criminal. lie will be forced to relyupon the courts for facts in regard to criminal acts. Suchand such persons, with such and such an official record,have committed certain offenses ; and these persons, on con-viction, are turned over to experts for diagnosis and treat-ment. The ascertainable physical and moral characteristicsof the offender may not be useful in the determination of


the crime, but they may be very useful in the classificationand treatment of the criminal.

The horn criminal is seldom without physical evidencesof what is now called degeneration. He presents certainphysical abnormalities. In fact, according to the notionsof Lombroso and his followers, without such abnormalitieshe is not a born criminal. All of the purely physical char-acteristics observed in the born criminal are present tosome extent in the normal man. Some of those whichhave been described by Lombroso and others are: peculiarskull and facial conformations; left-handedness and ambi-dexterity ; absence or exaggeration of tendon reflexes;abundant hair on the head, with scanty beard ; muscularabnormalities; amesthesia and analgesia; unusually rapidrecovery from wounds, or “ disvulnerability ”

; obtuse tac-tile sensibility ; unusual acuteness of vision ; defects in thesense of hearing, taste or smell; with many others lessmarked and regarded as of less importance. Take, how-ever, individual instances in which even a considerablenumber of these abnormalities exist. We may have a per-son with a marked peculiarity in skull formation, a heavyjaw, abundant red hair, scanty beard, diminished knee-jerk, defective sense of contact, acute vision, dull hearing,taste and smell, some muscular abnormality, and yet thisperson may pass through life, honest and upright, showingno criminal tendency even when exposed to temptation andfavored by opportunity ; but it would be idle to say that,in a person who had committed a crime, physical abnor-malities found to be more frequent in the criminal than inthe normal man, and particularly frequent in a certain classof criminals, may not be of great value in classifying thecriminal, forming an estimate of his dangerous qualitiesand of the probability of reformation. A person may havethe so-called insane ear or strikingly abnormal palate, great


irregularities in the development of the teeth and an insaneancestry, and yet we must wait for positive evidence of in-sanity by word, deed, or action before he can be pro-nounced insane. So physical abnormalities, even withcriminal ancestry, are nevei in themselves absolute evidenceof criminality.

The weakness in the position that there are any positivephysical tests for criminality is twofold. There is no fixednormal standard of comparison ; and the exceptions in whichphysical peculiarities assumed to be characteristic of crimi-nality exist in normal individuals are very frequent.

On the other hand, the mental and moral characteristicsof criminality are fairly positive and definite. Given anumber of persons who have committed actual crimes;meaning by this certain offenses against the person oragainst property which are violations of natural laws:These include homicides ; all kinds of crime against prop-erty, with or without violence; felonious assaults; mali-cious injury to person or property; the aiding and abet-ting of crime for gain, and other forms of crime whichreadily suggest themselves. There may be excluded: of-fenses against good order or discipline, not in themselvescriminal; purely social offenses; purely political offenses;honest differences from prevalent opinion on political, so-cial or religious questions; offenses against laws whichrestrict the natural rights of man ; offenses innocently com-

mitted through ignorance, etc. The mental and moralpeculiarities or abnormalities of these individuals may wellbe made use of in diagnosis, classification and treatment.Taken in connection with these, the purely physical ab-normalities become of great importance, as they do in thediagnosis, treatment and prognosis of insanity.

As I have already said, the criminal by passion alone isa normal man, but deficient in self-control under provoca-


tion or strong emotion. He presents no criminal history.The criminal act is followed by the deepest regret and in-tense remorse, usually with a desire for all possible repara-tion.

The criminal by occasion, or the one who commits acrime when occasion presents Itself in the form of tempta-tion and opportunity, may lack physical and moral charac-teristics of criminality and have no criminal heredity, beingsimply of a weak and pliable organization. This unfortu-nate should.be treated most carefully, and be protected, asfar as possible, from influences which may render him anhabitual criminal.

The professional and the habitual criminal are the mostdangerous enemies to society. Criminals belonging to thisclass form a criminal organization ruled by the dominatingpersonality of those of superior intelligence. They maypossess few, if any, abnormalities called degenerative ; butthey have no feelings of remorse, even for the gravestcrimes, are social in their habits, not solitary, and use theargot, or conventional language of criminals and vagabonds,which is never employed by the criminal by passion or thecriminal by occasion. The professional is usually notcowardly like the born criminal. He is temperate, pru-dent, without real friendships, and his sexual ties are sel-dom more than transient and unstable. These aristocratsof the criminal world have talents and industry which,directed in legitimate channels, would command respect.With the professional criminal, crime is profitable. Dugdale, the author of that remarkable study of crime calledThe Juices, says: “We must dispossess ourselves of theidea that crime does not pay.” Again, he says : “Thosewho do minor crimes commit about one hundred to onehundred and fifty offenses to one commitment, while thosewho ‘go for big money ’ get caught once out of five times.”


A great problem is to make crime unprofitable ; but thisappears to be excessively difficult. The idea of Garofalois certainly in the right direction. On conviction of acrime against property, strip the criminal of everythingnecessary to complete restitution ; or if no property can bereached, let the hard labor of the convict contribute as faras possible toward that end. As it is, the innocent suffererfinds it more to his advantage to compound a felony thanto aid what is called justice; and often he is deprived ofhis liberty in a house of detention while the criminal is atlarge on bail.

It is with the born criminal that the medical professionwill have most to do; and the scientific study of this ab-normity can not fail to be of immense benefit to our socialsystem. The born criminal always presents certain dis-tinctive mental and moral abnormalities.

Grouping together the professional, the habitual andthe born criminal, the same differences in intelligence andeducation are found as in the honest walks of life. Thosewho are of a low degree of intelligence are forced to limitthemselves to crimes that are within the scope of theirmental capacity. They replace intelligence with a lowduplicity and cunning, and they often act under the direc-tion of others. These most frequently present physicalevidences of degeneration. Experience in reformatoriesshows that many are incapable of education or even oflearning a trade which requires a moderate degree of skill.A great proportion of these are incorrigible. While allauthorities agree that education in itself is no bar tocriminality, it must be admitted that the discipline whichis involved in education and the avenues which it opens tohonest remunerative labor are favorable elements in ref-ormation when other conditions render this possible.

The chief defect in education observed in criminals is


in the line of technical skill. According to the observa-tions of Dugdale, 794 per cent, of the criminals examinedhad never learned a trade. This observation is confirmedby all students of criminology.

What Havelock Ellis calls moral insensibility is alwaysobserved in the born criminal. It is very important todistinguish this from so-called moral insanity. Generalmoral insensibility is a want of appreciation of right andwrong from the criminal’s point of view—it may be calledperversity or depravity—and criminal acts are not followedby repentance or remorse. Those who are regarded asmorally insane have no genuine remorse, and the argumentin favor of moral insanity without responsibility is basedon the notion that the moral insensibility is confined to asingle class of crimes, such as forgery, breach of trust, etc.It is difficult to imagine that a person has a moral defect asregards the crime of forgery, for example, and is entirelyhonest in other regards. If the idea of monomania is tobe discarded by alienists, the idea of moral insanity mustalso fall. As to the question of monomania, how is it pos-sible that a lunatic shall have a single delusion which hisintelligence is incapable of correcting, and yet this intelli-gence be absolutely normal in all other regards ? Themental disease may manifest itself in a single delusionwhich can not be concealed ; hut none the less is it positiveproof of mental disease.

The born criminal never has remorse. This is, indeed,pathognomonic of congenital criminality. Bruce Thomsonstudied this question in four hundred criminals convictedof premeditated homicide, only three of whom expressedremorse. If it is ascertained positively, after a sufficientperiod of observation and treatment, that a criminal has noreal remorse or repentance, it is certain that we have to dowith an incurable born criminal.

GRIME AND CRIMINALS. 17

The general character and inode of life of habitualcriminals are interesting and instructive. Such criminalsare invariably vain, superstitious, constitutionally lazy andimprovident, and are often sentimentaland excitable. Theyare social with their own kind, prone to orgies and to asso-ciation with a certain class of prostitutes who have the samekind of moral insensibility. They use among themselvesthe argot, or conventional criminal language, which is quitedifferent from the ordinary vulgar slang. They are fond oftattooing. Lombroso says: “Among male criminals thepractice of tattooing is so common as to become a specialcharacteristic.” The high-class professional is certainly anhabitual criminal and raaj7 be a born criminal ; but hishabits are usually such as do not interfere with the success-ful exercise of his profession.

It is impossible in the space at my command to domore than refer to the great questions of atavism, he-redity and environment in their relations to criminality.The Juices, that remarkable study by Dugdale, gives anidea of the terrible influence of heredity. The estimatesby Dugdale from the facts which he ascertained are cer-tainly reasonable. lie calculated that the descendants ofone individual, making a family of twelve hundred strong,entailed upon the community during a period of seventy-liveyears an amount of loss and expense equal to 11,250,000.If any relief is to be expected from the scourge of the pos-terity of criminals, it is certainly to the medical professionthat society must look.

When the diagnosis of the criminal and his classifica-tion is not to be obtained from the criminal’s own record,this can be made only in prisons and reformatories. Acriminal under thirty years of age on his first conviction iscertainly a most interesting subject for study. The resultof such study should class him either as a criminal by pas-

THE SCIENTIFIC TREATMENT OF

sion, a criminal by occasion, a born criminal or a criminalinsane. Tbe only way to atford an opportanity for diag-nosis and proper treatment is by the indeterminatesentence.Tbe trial by jndge and jury merely fixes tbe crime and itsresponsibility ; it can not bring to light tbe true characterof the criminal and indications for his intelligent treatment.Measuring the punishment to the crime is in the spirit ofvengeance, which does not belong to man ; it breathes no

thought of reformation or of intelligent protection of so-

ciety. In the words of Van Hamel: The greatest enemyto the new tendency in the treatment of criminals is thedoctrine of penal satisfaction, descendant of “ancient ven-geance, which has the pretension to confide to man a taskwhich can only be reposed in the hands of God.” “It isnot enough,” says Wines, “that criminal jurisprudenceshould be humane ; it must aho be intelligent.”

The law has thrown such safeguards around the crimi-nal that many crimes may be committed with impunity,and criminals frequently escape convdction when there isno room for doubt in regard to their guilt. There are,however, few unjust convictions. In the examination ofnearly a hundred and fifty convict witnesses in the late in-vestigation of the Elmira Reformatory, not more than oneor two hesitated to admit their guilt. Dugdale says: “Ofthose who are essentially not criminal, who are of soundmind and body, honest and industrious and of good stock,there are among State prison convicts from one to two percent. They are usually committed for crimes against theperson.” The conviction of an entirely innocent person ofhonest antecedents must be of extremely rare occurrence.

On conviction of a criminal he should be turned overto the State for treatment. The judge should not fix theso-called punishment. Fortunately, laws are not wantingin the Slate of New York to render possible this beginning


of an intelligent criminal administration. All will admitthe value and saving to society of the reformation of crimi-nals; and all criminologists, without exception, regard theindeterminate sentence as indispensable to proper reforma-tory measures. I copy from The Sun of August 14, 1895,the following, which shows that judges have the power toimpose indeterminate sentences, with very slight restric-tions and few exceptions:

“A fact not generally known even among the lawyers whopractise in the criminal courts in this city is that the Stateprison law provides for indeterminate sentences such as are inoperation at the Elmira Reformatory. The provision is madein section 74 of the Prison law, which is as follows;

“ ‘ Whenever any male person over sixteen years of ageshall he convicted of a felony which is punishable by impris-onment in a State prison for a term to be fixed within certainlimits by the court pronouncing sentence, the court autho-rized to pronounce judgment upon such offender, instead ofpronouncing upon such offender a definite sentence of im-prisonment in a State prison for a fixed term, may pronounceupon such offender an indeterminate sentence of imprison-ment in a State prison for a term with minimum and maxi-mum limits only specified, without fixing a definite term ofsentence within such limits named in the sentence, but the-maximum limit so specified in the sentence shall not exceedthe longest period for which such offender might have beensentenced, and the minimum limit in said sentence specifiedshall not be less than the shortest term for which such of-fender might have been sentenced. The maximum term spe-cified in such indeterminate sentence shall be limited in thesame manner as a definite sentence in compliance with theprovisions of section 697 of the Penal Code.’

“Succeeding sections appoint the Superintendent of StatePrisons, the agent and warden, the chaplain, the physician,and the principal keeper of each prison a board of commis-sioners of paroled prisoners for each prison. They are ta


meet from time to time, and each prisoner sentenced underthe law has a right to appear and apply for his share on paroleor for an absolute discharge. The commission is empoweredto grant an absolute discharge where it believes that the pris-oner will live an honest life. When the members of the com-mission feel a ‘ reasonable probability’ only, they may parole.Other sections provide for the retaking of prisoners who vio-late their parole at any time before the maximum term forwhich they might have been sentenced expires. Althoughthe leading penologists of the world advocate the indetermi-nate sentence system,,the judges of the courts don’t seem totake to it. The law has been on the statute books since 1890and only twenty-eight prisoners have been sentenced un-der it.”

If our judges could be brought to carry out this law, animmense advance would at once be made in the intelligenttreatment of criminals. Every prison should include a re-formatory, if for nothing else, to separate those who maypossibly be reformed from the incorrigible.

The born criminal, when he becomes an habitual crimi-nal, is and always will be an enemy of society. lie cannot be reformed, but the safety of the community demandsthat he be kept under constant surveillance when not actu-ally confined. Not only is he dangerous to society at large,but his association with the corrigible criminal is a greathindrance to the work of reformation.

The penal code provides for the treatment of thehabitual criminal, who was defined by statute in 1881, al-though the first sentence under the code was pronouncedAugust 29, 1895.

I am indebted to The Sun for the following citations:

NEW YORK STATE PENAL CODE.

690. Habitual Criminals.—Where a person is hereafterconvicted of a felony, who has been, before that conviction,convicted in this State of any other crime, or where a person

CRIME AND CRIMINALS. 21is hereafter convicted of a misdemeanor who has been al-ready five times convicted in this State of a misdemeanor, hemay be adjudged by the court, in addition to any other pun-ishment infiicted upon him, to be an habitual criminal.— CodeCr. Proc., sec. 510. People v. McCarthy, 45 How., 97.

691. Person, etc., of Habitual Criminal.—The person of anhabitual criminal shall be at all times subject to the super-vision of every judicial magistrate of the county and of thesupervisors and overseers of the poor of the town where thecriminal may be found, to the same extent that a minor issubject to the control of his parent or guardian.— Code Or.Proc., sec. 514.

692. Effect of Pardon. —The governor may grant a pardonwhich shall relieve from judgment of habitual criminality asfrom any other sentence; but upon a subsequent conviction forfelony of a person so pardoned, a judgment of habitual crim-inality may be again pronounced on account of the first con-viction, notwithstanding such pardon.—People v. Price, 53Hun., 188 ; 24 N. Y. State Rep., 936.

It is thus seen that existing Jaws in the State of NewYork provide for the classification of criminals, the ref-ormation of the corrigible and protection against the in-corrigible. All that is necessary to a practical reform,which must come in the near future, is a judiciary suffi-ciently enlightened to act in accordance with the provi-sions for indeterminate sentence and for the surveillanceof the habitual criminal, and a prison organization, intel-ligent, earnest, and capable of carrying out reforms onscientific principles which are now fairly well established.In the work of criminal administration the physicianshould occupy a prominent place. In the words of Lau-rent :

“ The physician should be the friend and student ofthe criminal as he is of the insane ; should know how todistinguish the alcoholic, epileptic, insane, the vagabond,and morally insane. The prison may remain a prison andyet be transformed through the results of criminal anthro-


pology. Prisons are inextinguishable mines for materialfor investigations in this science.” The United States initi-ated practically prison reforms, beginning with the House■of Refuge (afterward removed to Randall’s Island) in 1825and culminating in the Elmira Reformatory in 1876 ; andyet “ numbers of prisons exist nowadays which fall far below the commonest requirements of a good prison system ”

(Griffiths).The treatment of criminals is the great social question

■of the present day. There is no good reason why we shouldnot take advantage of the studies and experience of crim-inologists and penologists, treating, without malice or re-sentment, the criminal as a patient as well as crime as adisease: and there is every reason why we should studycrime in our prisons in the same spirit in which we studydisease in our hospitals and insanity in our asylums. Theobjects to be kept in view are the cure of the curable byreformation, protection against the incurable, prevention inthe way of limiting the development of criminal tendenciesin the young, and deterring those in whom these tendencieshave become developed. Punishment, as retribution forcrime, has no place in this system. Punishment, except asit deters, is of no advantage to society. The spirit of re-venge which leads an individual to kill or injure one whohas wronged him has no place in the legal protection ofmembers of our social system. What leads so many goodcitizens to condone crimes against property, if they can se-

cure any degree of restitution, is the fact that it is of noadvantage to the injured that the criminal be punished, toa certain extent at his expense and inconvenience. Pun-ishment, however, is a necessary element of discipline, andnowhere is discipline more important than in reformatoriesand prisons.

The reformatory treatment of criminals is that which


appeals most strongly to us as members of a professionwhose mission is to alleviate suffering and preserve healthand life. We do not ask, Is it worth while to attempt toreform criminals? but simply, Can they be reformed? Onthis question I can speak with the advantage of some ex-perience.

In 1894 I had the honor to be a member of a commis-sion of investigation of the New York State Reformatoryat Elmira, This investigation continued for about sixmonths, and during that time I made a careful study ofthe methods of the institution and the results obtained.These results are most striking and encouraging to thoseinterested in prison reform. The system —which time doesnot permit me to fully describe—involves discharge onparole after a certain period of treatment. It is estimated—and the estimate seems fair—that out of 3,725 paroledfrom 1876 to September 30, 1893, 3,051 were reformed,or 81 9 per cent. Out of 4,797 indefinites discharged,“ whether by parole, expiration of maximum term, or any•other way, the percentage of reformations was 63-6.”These calculations are based to some extent on estimates.In 1887 and 1888 an effort was made “to verify the esti-mates of probable reformation as to 1,722 prisoners whohad been paroled prior to September 30, 1887.” Inquiriesto prisons, relatives, employers and acquaintances of themen were made. Definite information was received as to1,125 of those paroled. Of that number reliable informa-tion was received that 78 - 5 per cent, had not fallen intocrime. This would give a percentage of 51'28 known tohave been reformed out of a total of 1,722 paroled. Aftersix months of satisfactory conduct on parole a prisoner re-ceives an unconditional release.

The Elmira Reformatory receives males between the agesof sixteen and thirty, after their first conviction of a crime


punishable by confinement in a State prison. They cannot be confined longer than the maximum term of impris-onment for the offense of which they have been convicted.The minimum term of confinement is not fixed. On ad-mission a full description is taken, including mentalcapacity, moral qualities, education, occupation, previoussurroundings, parentage, possible hereditary tendencies,etc. The inmate is put first into an intermediate or proba-tionary grade for six months. For bad conduct he may beat any time reduced to the lowest grade. After good con-duct for six consecutive months he is advanced to thehighest grade. It is possible for an inmate to earn hisparole in twelve months. The average time of detentionof those paroled, for six years prior to September 30, 1893,was twenty-two months. The average maximum term ofall indefinites received during the same period was fiveyears and nine months.

The reformatory combines within itself a prison, a

school of letters, a school of technology, a school of physi-cal training, a series of manufacturing departments and amilitary organization. The trade schools embrace thirty-four different trades, and gave instruction, in 1893—’94, toabout eighteen hundred inmates. Although carried on

primarily for instruction and not for profit, the manufac-turing departments realized $53,458.47 profit for the year1892-93.

Under the Elmira system no inmate is paroled until hehas a situation provided for him and enough money to hiscredit to support him until he receives his first month’swages. He is under surveillance for six months, and maybe returned to the reformatory at any time within this sixmonths should he violate the conditions of his parole.

The agencies which operate in bringing about these re-markable results are the fol’owing:


1. The indeterminate sentence, which gives hope ofrelease and incites to efforts at reformation on the part ofthe inmate.

2. The strict and inflexible discipline, including mili-tary training. Most inmates have never been taught self-control and have never been subjected to discipline.

3. Physical training, with no opportunity for commit-ting excesses of any kind.

4. Removal from surroundings and associations of a

demoralizing character.5. Education and technical training. Pike, the distin-

guished author of History of Crime in England, says:“ There is one great preventive for crime, one great anti-dote to instincts inherited from the past, and that is edu-cation.”

To summarize, a criminal by instinct, his criminalityfostered and developed by surroundings, absolutely illiter-ate, without a trade or means of earning an honest living,with a feeble and vicious physique, may be dischargedfrom the reformatory on parole, physically well and strong,with an education not beyond his station, a skilled me-

chanic with good employment under honest surroundings.He has six months in which to learn self reliance and isthen a free man. The Elmira Reformatory well deservesits position as the model institution of its kind.

It is so rare that a criminal more than thirty years ofage—except the criminal by passion and the criminal byoccasion—is reformed, that such are excluded from thebenefits of purely reformatory institutions. The objects inthe treatment of theseand of the incorrigible younger crimi-nals are the protection of society and deterrence by exampleand fear of consequences of crime. Imprisonment and pro-tracted surveillance of habitual criminals is an essential ele-ment in the protection of society against the habitual crirni-


nal; and an imprisonment which has no attractions of anykind. An imprisonment at hard labor, the prisoner sup-ported by the barest necessaries of life, with the most rigiddiscipline and persistent surveillanceafter release, is what isrequired, not as retribution, but for protection alone. A dan-gerous man, like any dangerous animal, should be preventedfrom doing harm. We confine a dangerous lunatic, largelyfor our own protection; but not under conditions intendedto deter men from becoming insane or to deter other luna-tics from committing violent acts, as is evident. Althoughan habitual criminal may be one by heredity and instinct,he is still capable of a certain self-control and can appre-ciate the consequences of criminal acts. When these con-

sequences show little chance for profit and involve seclusionfrom society, at hard labor—which is always repugnant tothe born criminal—and with no comforts or distractions,they can not fail to exert a deterrent influence; but hu-manity demands that criminal jurisprudence and adminis-tration should carefully separate from the class of incorrigi-ble and habitual criminals the criminals by passion and byoccasion.

The idea of restitution and reparation enters very littleinto the existing methods of treatment of criminals. Crimeshould be rendered as little profitable as is possible; andin simple justice the State should force the criminal tomake restitution and reparation to the injured to the fullestpossible extent. Nothing will more efficiently deter fromcrime than taking away or largely diminishing the profits ofcriminal acts. This idea of restitution and reparation per-vades the Italian school of criminology and is well repre-sented by G-arofalo. Speaking of a certain class of crimesagainst property, Garofalo, quoted by MacDonald, says;

“ For this there is nothing better than the forced pay-ment of the fine and damage to the injured party. This


would produce other advantages to society. An unfaithfulcashier or fraudulent bankrupt would know that if once

discovered he could not enjoy the smallest part of themoney stolen, but would have to return all, every penny,or otherwise he would have to work for an indefinite timefor him whom he had robbed. This is a forcible way ofcausing the sudden reappearance of the sum that might bethought to be in the hands of consorts. This is much moreuseful than imprisonment for a fixed time, which is no

profit to any one, and only adds to the damage from thecrime the expense of supporting the prisoner. If themoney has really been spent the offender must work with-out respite for the repayment of the injured party. If hewill not do it voluntarily, he will be obliged to do it byworking for the State, where there is no bread withoutlabor. If, in spite of his efforts, he is unable to gain a suf-ficient sura, after a certain number of years, according tohis age or his good will, this constraint can be fixed to tenor fifteen years; but this term should be lengthened assoon as a want of assiduity is noticed. If the delinquentfulfills all his obligations, he is to be released, and deprivedonly of his political rights, with interdiction of any publicfunction, or of exercising commerce, if it is a case of a bank-rupt.”

It is evident that the subject I have chosen is too largeto be adequately considered in a public discourse of reason-able length. The tieatment of those guilty of crimes sim-ply against the person, including homicide and murder, ofsexual perverts, vagabonds, tramps, beggars, alcoholics, etid genus omne must be passed over. Alcoholism and pros-titution exist and will exist. What shall be done withalcoholics and prostitutes, are questions of great impor-tance and problems that the medical profession should


attempt to solve. These problems can not be consideredhere; but T can not refrain from a brief discussion of capi-tal punishment.

Capital punishment eliminates the criminal and relievessociety from the dangers that might come from his pos-sible posterity. The execution of criminals is a simpleand easy method of extermination. Aside from the satis-faction of the idea of retribution, the advantages to societyof extermination and the supposed deterrent effect of exe-cutions commended to jurists the severe punishmentswhich were inflicted in the last century. Blackstone, writ-ing about the middle of the eighteenth century, says thatno fewer than one hundred and sixty crimes were madepunishable by death in England by acts of Parliament. Thecruel and atrocious tortures and punishments in earliertimes, mainly the offspring of fanaticism, may well exciteour horror. The Inquisition, with nearly throe hundredand fifty thousand victims between 1491 and 1808, theburning of persons accused of witchcraft at Salem in 1691and 1692, are shocking examples of legalized cruelty. Atthe present day, capital punishment is practically limited tothe crime of murder.

It is pretty generally conceded that a man has a moralright to take the life of another in defense of his own ; buthave we a moral right to take a human life, either in theexercise of retribution, to prevent subsequent harm at thehands of the criminal, or to deter, by example, others fromtaking life ? If it is criminal for an individual to takethe life of another from motives of vengeance, it is equallycriminal for society to take a human life as punishment forcrime. At times of great danger it may be necessary tosacrifice human life to preserve discipline ; but this is ameasure of self-defense. We certainly should be able toprevent a murderer from.repeating his crime without com-


mitting a legalized murder. The only argument, to mymind, that remains in defense of capital punishment isthat it may he deterrent.

The arguments advanced by the advocates of capitalpunishment are certainly very strong, Garofalo says thatmurders always increase in proportion as the severity of thepunishment for this crime is relaxed ; and. he cites statisticsfrom Belgium, Italy, Great Britain, Switzerland and Francein support of the view that the effect of capital punishmentis deterrent. On the other hand, there are strong argu-ments in support of the proposition that capital punishmentis not deterrent. That public executions are demoralizingand brutal, every one will admit. The moral insensibilityof murderers is well known, as well as the bravado of thosewho pose as heroes and the emotional displays of thosewho profess repentance and “ change of heart.” Mac-Donald quotes a statement that, out of a hundred and sixty-seven persons condemned to death in England, a hundredand sixty-four had been present at executions.

The argument that 1 shall present against capital pun-ishment, and one that I think can not be successfully con-troverted, is that the taking of human life as a punishmentfor crime is in itself a crime, is a relic of barbarism and un-worthy of our present civilization. No physician can con-sistently countenance the taking of human life. When wecan not and will not mercifully do this to put an end tosuffering in cases of incurable disease or in the case of dan-gerous and hopeless lunatics, much less can we approve of itas a punishment or to deter possible criminality in others.We may destroy the life of an unborn child to save the lifeof the mother; but then it is with extreme reluctance andrepugnance for the act. Compared with acts of savage bru-tality, such as cannibalism, we may quote, with MacDonald,the words of Montaigne, who says, “ it is more barbarous to


kill a live man than to roast and eat a dead one.” We neednot go very far back to find acts provided for and sanctionedby law and so-called necessity which civilization would nottolerate at the present day. Before Pinel, in 1792,with hisown hands removed the chains from lunatics at the Bicetre,the conditions of confinement of the insane were horriblebeyond description. The tortures of criminals and suspectsa few decades ago' were worthy only of savages; and manyof the executions were brutal murders. When John How-ard made his inspections of penal institutions in 1773, theprisons were hells upon earth. As scientific progress hasbrought about the wonderful reforms in the treatment ofthe insane, so the same spirit should remove the last glar-ing relic of barbarism, capital punishment. It is an un-worthy reproach to science to assert that society has butone way of deterring the greatest of all crimes, and that isby repeating the crime itself under the cover of law. Evenin the punishments which are necessary to the enforcementof discipline, the “golden rule ” laid down by Bike shouldbe observed :

“ Let them not afford an evil example ofcruelty to the spectators.”

Emancipation from fanaticism and bigotry is the firstnecessity in the intelligent treatment of crime. Fanaticismis responsible for the early persecution of scientific discov-erers, such as Galileo, the persecution of the Jews, themassacre of St. Bartholomew, and the numberless crimescommitted in the name of the divine right of kings. ThePuritans landed in America in 1020 to escape religiouspersecution and to enjoy religious liberty ; and they hangedwitches in 1692. No great progress can be made in thereform of criminal jurisprudence until the laws based onbigotry and intolerance of personal and religious libertyare removed from the statute books.

It is to the physician and the scientific student of


crime that we must look for real reforms. The history ofcriminality is full of solemn warnings of dangers incidentto existing systems in the treatment of crime, and thegreatest of these is heredity. The history of The Juicesconveys this warning in the strongest possible manner.

We are justified by public opinion in protecting ourselvesfrom the dangerous insane by perpetual confinement. Thedangers we have to provide against from the habitualcriminal are much greater, as he is an enemy with more or

less intelligence, acting with method and in concert withothers. All criminologists agree that such criminals, whenirreclaimable, should be put under perpetual confinementor surveillance. Dugdale says: “In dealing with thehabitual typical criminals who are contrivers of crime,criminal capitalists and panders, wheie we can not accom-plish individual cure we must organize extinction of theirrace. They must sternly be cut off from perpetuating anoisome progeny either by the propagation or perversionof a coming generation. The old laws attempted this ex-tinction by hanging; but for us it must be perpetual im-prisonment, with certain mitigations to guard against bar-barity. For this class, congregate imprisonment is perhapsthe most suitable.”

Dugdale evidently did not care to suggest a method oforganizing “ extinction of their race ”

; but one less severethan hanging readily suggests itself. It would be not diffi-cult to devise a method of sterilization of irreclaimable borncriminals which would not offend sentimental public opin-ion ; this to be applied, not as a punishment for any par-ticular class or classes of crime, but merely for the protec-tion of society, and after a full scientific investigation ofevery case.

In concluding my very inadequate treatment of thegreat questions considered in this discourse, I do not make

32 THE treatment of crime and criminals.

any formulated suggestions; but it must be evident thatcriminology and penology should receive more attention atthe hands of the medical profession. The State of NewYork is the birthplace of practical penal reform. Let herdo her full share now in the good work ! While it wouldbe desirable to adjust our criminal laws so as to bring theminto accord with the present scientific status of criminology,existing laws admit of important reforms. A scientificspirit might be infused into the prison commission if itincluded members of the medical profession. Physiciansto prisons should study criminals according to modernmethods and not simply prescribe for their bodily ailments.Much study and accumulation of material are necessary tobring criminal anthropology to a condition approaching apositive basis, and for this work criminologists look to themedical profession. As I have already said, I venture tohope that criminology and penology will not be neglectedby the New York State Medical Association.

The NewYork Medical JournalA WEEKLY REVIEW OF MEDICINE.

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